Mandatory vaccinations rolled out?

From 11 November CQC registered care homes will only be able to use staff to provide care who can produce evidence that they have had two doses of the COVID-19 vaccine (or are medically exempt). 

For those still trying to persuade staff to have the vaccine, time is running out, and many care homes are facing the prospect of considerable uncertainty.

A poll taken at this week's Trowers Tuesday on vaccines and care, revealed that 29% of attendees had 8-20% of staff who were still refusing to have the vaccine. Only 6% had no vaccine-hesitant staff, while 63% had 7% or less who were resisting the COVID jab. Meanwhile 2% of those attending said that more than 20% of their staff who were refusing to have the vaccine.

In order to be fully vaccinated by 11 November, the last day by which care staff should have had their first vaccination dose (16 September) has passed by some margin, so there are clearly many care homes out there who will not meet the double vaccination requirement by the designated timeframe.

Of those attending Trowers Tuesday, 100% said that they would have to consider staffing shortages. Meanwhile, 23% will be considering negotiating changes to their service provision, and 21% will be considering whether to hand services back to commissioners.

The impact of the mandatory vaccination requirement will be considerable, and care homes are currently uncertain how they will manage to fulfil the services they offer once the 11 November deadline has passed.

Meanwhile a 6-week consultation has been launched, closing on 22 October, which looks at whether the mandatory vaccinations should be required of all those in contact with patients and people receiving care, except those medically exempt.

The government states that about 92% of NHS trust staff have received one COVID vaccine, with 88% of staff having received both doses. Data also shows that there is a variation in uptake between NHS trusts, with uptake rates varying from around 78% to 94% for both doses.  

The consultation also seeks views on whether flu vaccines should be a requirement for health and care workers. The government's introduction to the consultation states that recent research has shown that people infected with both flu and COVID-19 are more than twice as likely to die as someone with COVID-19 alone, and nearly six times more likely than those with neither flu nor COVID-19. This is the rationale for considering both vaccines within the consultation.

The consultation

The consultation proposes that mandatory vaccination is extended to all that conduct a CQC activity. The remit of CQC regulated activities is extensive, and as well as covering health and social care settings, includes circumstances such as the management of supply of blood and blood-derived products, services in slimming clinics and family planning services. The consultation seeks views on any CQC regulated activities that should be excluded, i.e. where there is no in-person contact with a vulnerable person (an example given is medical advice that is provided remotely).

The government states in the consultation document that it is also considering whether some CQC regulated activities provided in residential or inpatient settings, for example, residential recovery services for drugs and alcohol, hospices, and registered extra care and supported living services, should be subject to the mandatory vaccination requirement.  

In the first phase of the vaccination roll-out, under 18s were not included. However, since then, 16 and 17 year-olds are eligible to receive the vaccine. As a result the consultation states that the government will look carefully at whether or not those aged 16 and 17, who are deployed to undertake direct treatment or personal care as part of a CQC regulated activity, should be included in the mandatory vaccination and flu requirement (assuming that mandatory action is required.

With the mandatory vaccine roll out in care homes, it has become apparent that the regulations are influencing staffing levels. The consultation recognises that the proposals have a possible impact on staffing levels, particularly in local areas where uptake is lower or where it is harder to recruit. It also recognises that continuing non-mandatory approaches could rectify this staffing issue but highlights that the policy intention for those providing direct care and treatment to protect the people in their care by having the vaccination may not be achieved.

The implementation of the mandatory vaccinations in care homes had a very tight turnaround and didn't consider notice periods, and the need for employers to consult with their staff. The consultation explains that the government is considering what would be an appropriate grace period before the new regulations would come into force. If the same timescale was followed as before, new regulations would be implemented in March 2022.

There is also some consideration of whether booster vaccines should be mandated across health and social care.

The consultation does not shed any further light on the best way for people to prove that they have been vaccinated. Reference is made to showing vaccination status on the NHS app or via hard copy, and we anticipate this will become the norm. 

Who will be exempt?

If the decision is made to introduce mandatory vaccination the government has made it clear that it will ensure that any regulations made will only allow for exemption on medical grounds. As with the regulations applying to CQC-registered care home workers, the government has stated that individuals will be exempt if they have any allergy or condition that the Green Book on Immunisation against infectious diseases (COVID-19: the green book, chapter 14a) refers to. Exemptions will also be in lined with the JCVI, reflecting clinical advice.

Medical exemption from vaccination will be evidenced under the NHS Covid Pass system. It was announced recently that as of 15 September people working or volunteering in care homes who have a medical reason why they are unable to have a Covid-19 vaccine can self-certify that they meet the medical exemption criteria via a self-certification form which they must then give to their employer as proof of temporary exemption status. This is a temporary self-certification process that has been introduced prior to the launch of the new NHS Covid Pass system which is imminently due to go live.  Once the Pass system is launched the workers and volunteers will have to apply for a formal medical exemption via the new system and their temporary self-certification will expire 12 weeks after the Pass system is launched. It has also been announced that individuals who have received a Covid-19 vaccination abroad can self-certify as medically exempt, and time-limited exemptions are available for those with short-term medical conditions, and for pregnant women should they choose to take it.

Potential areas of concern

Staffing levels - If mandatory vaccination is introduced to all frontline workers in health and social care settings then what are the implications for their employers? They will find themselves coming across the same concerns as those currently being faced by CQC-registered care homes with concerns that health and social care is made less attractive than other jobs at similar salaries.

Dismissal - Will it be possible to dismiss an employee who refuses to have the vaccine? The answer is yes, but the matter isn't entirely straightforward. If regulations are introduced then the new law would give an employer a fair reason for the dismissal, but the employee concerned could still bring a claim for unfair dismissal. In order to defend such a claim the employer would have to be able to show that they had explained why the vaccine was needed, and that a fair procedure was used to dismiss the employee. Options such as redeployment to a non-front line role will also have to be considered.

Employee relations - We've seen numerous grievances and whistleblowing complaints from people who refuse the vaccination. They generally challenge mandatory vaccinations by arguing that they are discriminatory. Employers will be able to justify a mandatory vaccination policy on the grounds that they are legally obliged to have one but might still have to defend high profile and expensive claims, and must follow fair process in dealing with challenges.

Recruitment - The biggest concern is about recruitment. Care homes are currently struggling to fill vacancies, in part due to the requirement to be vaccinated. The press has reported that care home staff are quitting to become Amazon warehouse pickers and work in supermarkets, but there are also reports of staff simply leaving because they want to avoid mandatory vaccination. If the government presses ahead with mandating vaccination in all health and social care settings it's likely that they'll see a similar impact.


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